Introduction

Key findings:

America’s system for preventing worker illnesses and deaths from chemicals, fumes and dust is so broken that OSHA warns companies not to rely on its legal exposure limits to protect employees.SHARE THIS:

One example of the U.S. government’s failure to properly regulate toxic substances in American workplaces: The effort to tighten rules for lung-damaging silica is 40 years old and still hasn’t crossed the finish line.SHARE THIS:

U.S. workers face high cancer risks if exposed over their careers to certain chemicals at the legal limit, according to analyses by OSHA and a separate analysis by the Center for Public Integrity and a former OSHA official.SHARE THIS:

The vast majority of the tens of thousands of chemicals made or used in the U.S., including some very common and toxic substances, have no workplace exposure limits.SHARE THIS:

PORT BYRON, New York — Six weeks before Chris Johnson was born in 1974, the U.S. government issued a warning about a substance that would nearly kill him 30 years later.

The substance was silica, a component of rock and sand that is the scourge of miners, sandblasters and other workers who breathe it in. When pulverized into dust, it can cause silicosis — a scarring of the lungs that leads to slow suffocation — as well as lung cancer.

This was no newly discovered hazard. The ancient Greeks and Romans were mindful of it. Labor Secretary Frances Perkins launched a national campaign against it in the 1930s after the knifelike particles dispatched hundreds of tunnel workers in West Virginia.

The 1974 warning by the National Institute for Occupational Safety and Health said the workplace exposure limit for silica put people in danger. NIOSH urged the U.S. Department of Labor’s Occupational Safety and Health Administration to cut the limit in half.

OSHA finally did so in 1989, only to see its work undone by a court decision. It didn’t try again until 2011. In the interim, Johnson became a bricklayer and developed acute silicosis after a five-month job that enshrouded him in dust. He’s 40 and, on paper, can expect to survive less than five years.

As Johnson’s experience shows, inaction has consequences. Silica — which OSHA says threatens 2.2 million workers, mostly in construction — is a striking example of the government’s failure to properly regulate toxic substances in American workplaces. The silica rule still isn’t finished. If it is enacted despite industry protests, it will be only the 37th health standard issued by the agency in its 44-year history.

It’s an ignominious record given the human and economic costs of work-related disease in the United States. According to a widely cited University of California, Davis, study, an estimated 53,000 people died in 2007 from on-the-job exposures — outnumbering those killed in suicides, motor vehicle accidents, falls or homicides. More than 400,000 others got sick. The price tag: an estimated $58 billion. OSHA puts the annual toll at more than 50,000 deaths and 190,000 illnesses.

June 29, 2015

An 18-month investigation by the Center for Public Integrity has found that the epidemic of occupational disease in America isn’t merely the product of neglect or misconduct by employers. It’s the predictable result of a bifurcated system of hazard regulation — one for the general public and another, far weaker, for workers. Risks of cancer and other illnesses considered acceptable at a workplace wouldn’t be tolerated outside of it.

For years, the best OSHA has been able to do is set chemical limits so that no more than one extra cancer case would be expected among every 1,000 workers exposed at the legal maximum over their entire careers. The U.S. Environmental Protection Agency’s standards for the public are 10 to 1,000 times more protective. The real gap is often worse, a former OSHA official says.

“I can’t see any justification for treating people that differently,” said Adam M. Finkel, who heads the Penn Program on Regulation at the University of Pennsylvania Law School and was director of health standards programs at OSHA from 1995 to 2000.

June 29, 2015

Bricklayer Chris Johnson contracted acute silicosis triggered by silica dust exposure on the job. The U.S. government has failed for 40 years to more strictly control silica in American workplaces — exposing countless other workers to this lethal substance — and leaving Johnson with a life expectancy of five more years.

Among the Center’s findings:

• Most of OSHA’s 470 chemical exposure limits are, by the agency’s own admission, grossly outdated and don’t protect workers from a variety of ailments. Cancer, for instance: The agency’s own analyses of 16 substances estimate that cancer risks associated with legal exposures to workers over their careers are as high as six in 10. Analyses of an additional 31 exposure limits by the Center and Finkel found cancer risks above 1 in 10 for nearly half of the chemicals.

• The vast majority of the tens of thousands of chemicals made or used in the U.S., including some very common and toxic substances, have no workplace exposure limits. The lung-ravaging food flavoring diacetyl. The widely used herbicide glyphosate, recently named a probable carcinogen by the World Health Organization. The agents in chemotherapy drugs, hazardous to the health care workers preparing and handling them.

• Even apparent success stories — rare cases in which chemical limits were tightened — can be Pyrrhic victories. OSHA’s own calculations suggest, for example, that the cancer risk for hexavalent chromium, a metal used in specialty paints and coatings, was as high as one in three at the limit in effect from 1971 to 2006. At the current, stricter standard, the risk is still as high as one in 22, OSHA acknowledges.

• Sampling for chemicals has fallen over the last three decades as workplaces multiplied but OSHA’s staff levels stagnated. Even so, OSHA still finds exposures above legal limits, a Center analysis found. One in six samples containing hexavalent chromium, taken after the 2006 rule change, topped the limit of 5 micrograms per cubic meter of air. Samples containing lead, a brain-damaging metal that can accumulate on a worker’s clothing and hurt the whole family, have exceeded the limit 40 percent of the time since 1984.

• NIOSH last did a nationwide workplace exposure survey more than three decades ago because it has not had the funding to update it. Critical information on both old and emerging chemical hazards across industries is missing, putting regulators and researchers at a disadvantage.

A profound toll

Job-related illness is a slow-motion tragedy few seem to understand or acknowledge. Its victims usually die one by one, out of public view, though disease clusters emerge on occasion.

More than 50 cases of bladder cancer, for example, have been tied to a small Goodyear chemical plant in Niagara Falls, New York, far above the expected number in the general population. NIOSH investigators identified the suspect chemical years ago: ortho-toluidine, used to keep tires from cracking. Exposures in the plant weren’t extreme; in fact, they were “well below” the legal limit, the investigators reported.

Goodyear, which made changes to its factory after the problem came to light, said in a statement that all but one of the 54 bladder-cancer cases identified through its own screening program involved workers who came to the plant before 1990.

“While the ortho-toluidine exposure levels in the plant have generally been far below the permissible exposure limits, engineering controls were put in place in the 1980s to further reduce levels in the plant,” the company said.

Steve Wodka, a lawyer in New Jersey who represented about half the Goodyear victims in claims settled out of court, said he knows of 62 bladder cancer cases from the plant. He calls that cluster “probably the best example of the inadequacy of the system.”

Ortho-toluidine is in a family of chemicals — aromatic amines — known since the 1930s to cause bladder cancer, Wodka said. Yet its exposure limit of 5 parts per million, adopted by OSHA in 1971, was fashioned only to protect workers from the chemical’s acute effects, not cancer.

“It remains the law of the land today,” Wodka said.

The blight of disease contracted on the job isn’t confined to factory workers. It consumes hairdressers, grocery store meat-wrappers, scientists and people in a variety of other professions. Many are stricken by middle age.

The panoply of illnesses, from nerve damage to dementia to virulent cancers, takes a profound toll on workers and their families. Careers are lost, finances shredded, marriages tested. In some cases, workers opt for macabre, last-ditch procedures to try to save their lives.

June 29, 2015

“They basically clean you out like a fish,” cancer victim Mike Dennen, who worked in asbestos-contaminated textile factories, said of his 2013 surgery. “They tell you before surgery you can end up without a bladder, you can end up without your intestines.”

Federal regulators are overwhelmed by the scope of the problem, which didn’t materialize by chance. Congress has exacerbated the situation by refusing to fortify the weak 1970 law specifying what OSHA can do. Trade groups have challenged health standards in court while workers lose their lives. The White House’s Office of Management and Budget is a vortex that sucks in proposed agency rules and doesn’t spit them out for months — or years.

David Michaels, head of OSHA since 2009, speaks frankly about the results.

David Michaels, head of OSHA since 2009, told the Center for Public Integrity recently that “with a few exceptions, OSHA’s standards to protect workers from chemical exposures are weak and out of date, or simply non-existent.”

Jamie Smith Hopkins/Center for Public Integrity

“With a few exceptions, OSHA’s standards to protect workers from chemical exposures are weak and out of date, or simply non-existent,” he said in a recent interview.

OSHA’s exposure limits almost all date to its founding in 1971, he noted, when the agency adopted 1960s-era voluntary numbers embraced by industry. Few have been updated since, and only those few became full standards with specific technological and medical requirements.

“The law under which OSHA operates … forces us to go through a very, very complex, onerous process for regulating any individual chemical,” Michaels said. “It takes many years and millions of dollars in studies to issue one standard. And that’s why we’ve got only a few dozen standards.”

An ancient hazard

Silicosis and other dust-related diseases, the 1974 NIOSH document reported, “have probably existed since man began to dig into the earth’s crust.” Silica was a cruelly efficient killer of stone-cutters in the 17th century; slicing through the workers’ lungs during necropsy was “like cutting a mass of sand,” a Dutch physician reported in 1672. It silenced 19th-century sandstone masons in England long before they reached old age.

Silica also precipitated America’s worst industrial disaster: the deaths of more than 750 workers — many African-American — who drilled a water-diversion tunnel through silica-rich rock near Gauley Bridge, West Virginia, in the early 1930s. Death estimates reached as high as 2,000, but the full count will never be known. Sick workers were booted out of company housing. Some who died on site were carted off to unmarked graves.

Four decades after that, in December 1974, Christopher Scott Johnson was born in Auburn, New York. His life almost perfectly tracks silica’s tortured regulatory history.

Feb. 14

March-August

Nine meetings on silica are held at OMB; industry representatives outnumber labor and public-health representatives 44-to-13 at these meetings

2013

March

Two more meetings are held at OMB; industry representatives outnumber labor and public-health representatives 9-to-1

Aug. 23

After 921 days, OMB completes proposed rule to set permissible exposure limit to .05 mg/m3 – the same number recommended by NIOSH nearly 40 years earlier

2014

March 18

OSHA holds public hearings on the proposed rule

June

Tries to return to masonry, has to leave after a few weeks due to health

2015

Feb. 13

Centers for Disease Control and Prevention reports that 1,437 people had silicosis listed as an underlying or contributing cause of death between 2001 and 2010, and that 2 million American workers remain potentially exposed to silica

March 23

The Construction Industry Safety Coalition, an industry group, submits report to OSHA claiming silica rule could cost the construction industry more than $4.9 billion a year and lead to more than 52,700 lost jobs. OSHA estimates $511 million in annual costs

The month of Johnson’s birth, OSHA published an “advance notice of proposed rulemaking,” indicating movement toward a new silica standard. That effort fizzled due to a lack of funds, according to the head of OSHA at the time.

Silica-related death and disease continued. As bad as things were in foundries and other dusty, fixed establishments, where workers legally could be exposed to twice the NIOSH-recommended silica limit, construction was far worse. Employers in that sector could subject workers to five times the recommended limit without breaking the law.

That’s still the case.

Johnson landed in the construction category in 1993. He became a bricklayer, also known as a mason, following in the footsteps of two uncles. He crafted sidewalks and floors with bricks and stone, and helped repair and put up buildings.

Chris Johnson and his wife, Beverly.

Maryam Jameel/Center for Public Integrity

“I was very happy with my job,” he said in an interview at his home in Port Byron, west of Syracuse. “I felt fulfillment.”

Johnson said he was oblivious to silica’s destructive properties. That didn’t matter until he was assigned a job in Rome, New York, in April 2004. Standing on hydraulic lifts, Johnson and his co-workers at a small contracting firm removed and replaced damaged brick from the façades of three apartment buildings operated by the Rome Housing Authority.

The work, which lasted through September of that year, generated “a tremendous amount of dust,” Johnson said. “You’re in a basket that’s maybe six feet wide and two or three feet deep, so you’re pretty much stuck right there.”

The workers were given disposable paper masks, known by experts to be ineffective against microscopic silica particles. The one half-face respirator on the job had a broken strap, “so we didn’t really use it,” Johnson said.

They had tools to suppress the dust: Their diamond-bladed, 14-inch demolition saws came equipped with hose attachments for “wet cutting.” But the project manager for the housing authority refused to allow the practice, fearing it would “make too much of a mess,” according to an affidavit given by a former co-worker in a lawsuit Johnson later filed against the authority. OSHA rules, moreover, don’t require it.

Johnson did “about 90% of the saw cutting and grinding on the job,” his former colleague said in the affidavit. “In fact, he was often so covered in dust we nicknamed him ‘Dusty.’”

Jim Baldwin, who joined the housing authority as executive director years later, said he would have allowed wet cutting “because of the danger caused by the inhalation of the fine dust.”

“Not having proper respirators on the job was certainly a factor in the worker’s illness,” he added by email. “For that I would have shut the job down until that equipment was made available and was being used.”

There is no way to know how much silica Johnson inhaled. But the current rule for construction is so weak, even employers that stay within the legal limit can be “sentencing someone to death from lung disease,” said Celeste Monforton, a lecturer at George Washington University and a former Labor Department analyst and adviser.

By the time the Rome job ended, “something was not right with me,” Johnson said. He was short of breath, losing weight rapidly, unable to do simple tasks without exertion. “I had no clue what was going on.”

The answer came early in a three-week stay at the University of Rochester’s Strong Memorial Hospital in December 2004. Johnson’s parents drove him there after his right lung collapsed following a biopsy, and further tests showed he had acute silicosis triggered by mixed dust exposure.

He underwent an unusual procedure called a lavage, in which his lung was flushed of sticky material filling up the air sacs and robbing him of oxygen. He stayed on a ventilator for nine days.

“None of the doctors really even knew if he was going to pull through or not,” said his wife, Beverly.

A worker at a construction site in Rockville, Maryland, breaks up concrete with a jackhammer, creating a cloud of silica dust. The worker is wearing no respiratory protection and no water is being applied to suppress the dust, putting him at risk of disease.

Maryam Jameel/Center for Public Integrity

The procedure didn’t help much. Johnson continued to struggle for air as he rested fitfully at home in early 2005. He was a candidate for a double lung transplant, a prospect he found unappealing once he learned the odds of survival: less than half of patients would live five years, and less than a quarter would survive 10.

He opted instead for a second lavage at the Cleveland Clinic in May 2005. This one took. By 2006 his lung disease had stabilized, though it hadn’t been cured.

Internist and lung specialist Dr. William Beckett treated Johnson in Rochester and was so struck by the severity of the young mason’s condition that he co-authored an article about it for a medical journal. In an interview, he noted the banality of the substance that had gummed up Johnson’s lungs.

“This is not an unusual material. It’s not exotic,” Beckett, now affiliated with Harvard Medical School and Mount Auburn Hospital in Cambridge, Massachusetts, said of silica. “It’s something that everybody is around, but the people who cut through it or work with it are susceptible to getting disease from it.”

Beckett chaired an American Thoracic Society committee that called for a stricter OSHA silica limit in 1997. To his dismay, the old one is still in place.

“There are many, many, I’m sure, young men in the United States who are doing the same kind of job [Johnson did],” he said, “and probably getting the same kinds of exposures.”

OSHA doesn’t try to put a happy spin on its largely 44-year-old workplace chemical-exposure limits: The operative word, the agency says, is “antiquated” — simply complying “will not guarantee that workers will be safe.” In 2013 the agency launched a side-by-side comparison with other standards, some discretionary and some required only in California, to urge employers to voluntarily rely on more protective guidelines. Image from the Noun Project/ Luis Prado.

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Forty years of futility

OSHA’s 40-years-and-counting quest to keep silica from killing workers is a study in inertia and frustration. The agency tried to tighten exposure limits for silica and 375 other substances in a 1989 rule, but a federal appeals court struck it down, saying the analyses OSHA used to justify the rule weren’t detailed enough.

It took OSHA nearly two decades to regroup, even though it deemed silica a regulatory priority in 1995 and 2002. In the meantime, evidence hardened that silica could cause lung cancer in addition to silicosis.

It’s unlikely any group of workers has felt the sting of lax silica controls more than sandblasters, who use pressurized guns to shoot sand at corroded surfaces to prepare them for painting. The sand breaks apart as it strikes metal, creating clouds of dust laced with invisible shards of quartz that scar the lungs.

But industry groups in the United States, like the euphemistically named Silica Safety Association, composed of purveyors and beneficiaries of sandblasting, lobbied successfully in the 1970s to fend off a ban, predicting economic hardship.

In February 2011, OSHA finally sent a proposed silica rule to the Office of Management and Budget for vetting. It emerged 921 days later in 2013. OMB officials will not say why it took so long; 90 days, plus a single 30-day extension, is supposed to be the maximum unless the rulemaking agency asks for more time.

Apart from trimming the silica exposure limit to the NIOSH-recommended number for all workers, the proposed standard would require employers to control dust with methods such as water or vacuum systems and provide medical monitoring for highly exposed workers. OSHA predicted it would save nearly 700 lives and prevent 1,600 new cases of silicosis per year.

The Labor Department held 14 days of hearings in Washington, D.C., in the spring of 2014. Among the witnesses was construction worker Santiago Hernandez, who’d come to the United States five years earlier from Tlaxcala, Mexico, expecting to find safer conditions.

Instead, he said in written testimony, “things are actually much worse here than in Mexico. … The protections you receive here are useless. Employers give you a little paper mask that, when you finish, is just as dirty and dusty on the inside as on the outside.”

Dale McNabb, a tile setter from Warren, Michigan, spoke of developing “breathing problems at night” in his 20s. “By the time I was 30 I felt it more. I could hear my labored breathing and wheezing, and it shocked me.”

In 2008, when he was 42, he volunteered to use a grinder to remove thinset — a mortar made of cement and sand — from a wall over the course of several weeks. “At the end of the project I was feeling pretty bad,” McNabb testified. Tests showed “shadowing in my pleural membrane so severe that the membrane was almost opaque, and there were several lesions on my lungs.”

“When I get exposed to dust now — and not just silica dust, any dust — it feels like I have a plastic bag around my head and someone’s trying to pull it shut on me,” McNabb said. He got a job as a shuttle bus driver, then in financial services, and is thankful he can work. But the stress that followed his health crisis left a lasting mark. “In the end, silica exposure cost me my job, my health and also my marriage.”

Industry witnesses also shared doleful stories — what would happen to companies if they had to comply with the proposed rule.

The American Foundry Society, disputing OSHA’s cost estimates, said the standard would eat up 10 percent of the industry’s revenue and “threaten the viability of foundries across the country.”

The American Chemistry Council, the chemical industry’s main trade group, said the silicosis death rate has dropped more than 90 percent since 1968. Neil King, a lawyer for the council, blamed newer cases on exposures “that occurred decades ago” and more recent exposures that far exceeded the current limit — something that happens regularly, he said.

About 30 people marched outside the U.S. Chamber of Commerce June 5 to protest the chamber’s opposition to a stricter silica standard. Marc Freedman, the trade group’s executive director for labor law policy, watched from the steps and chuckled. “It’s lame,” Freedman told a Center reporter. “Why do they think the chamber is the reason this [standard] hasn’t happened?”

Maryam Jameel/Center for Public Integrity

And the U.S. Chamber of Commerce, which represents more than 3 million businesses, suggested that OSHA ought to take more time on an effort already four decades old.

“We have serious concerns about this rulemaking being rushed,” said Henry Chajet, a lawyer who spoke for the chamber.

Industry groups have kept up the pressure as the rule inches toward final form. That includes pointedcomments from the chamber, a lobbying powerhouse that spent $124 million to press for its members’ interests in 2014 — more than the next four top-ranked groups combined.

OSHA’s economic analysis projected that while affected businesses would spend an estimated $664 million annually to comply with the proposal — about $1,242 for the average workplace — the net benefits would range from about $2.9 billion to $4.7 billion a year, values OSHA applied to avoided disease.

In a congressionally requested 1995 review of past OSHA actions, the since-dismantled Office of Technology Assessment found that the agency tended to overestimate the cost its health rules would impose on industry — often in a big way.

Nonetheless, in March the Construction Industry Safety Coalition, composed of 25 trade groups, said its own study concluded that a new silica standard would cost construction companies nearly $5 billion a year — 10 times what OSHA had calculated for that industry. It could be “the most expensive OSHA standard ever for the construction industry,” the coalition warned.

OSHA is undeterred, Michaels told the Center. “President Obama has made it very clear he is committed to getting the silica standard out while he’s president.” A final rule is expected by the end of 2016, a Labor Department spokeswoman said.

But the Senate Appropriations Committee last week approved an appropriations-bill rider that would require more study before the rule could be issued, which would put the proposal at the mercy of the next president. And even if the rule is enacted, that may not be the final word. Industry almost always challenges OSHA standards in court, which can delay or overturn them.

Reports from public health officials, meanwhile, show that silica remains a workplace menace.

In 2012 NIOSH researchers said they collected 116 air samples at sites in five states where shale deposits were tapped with the oil and gas extraction technique known as hydraulic fracturing, or fracking. Vast quantities of high-silica sand are used to hold open fissures underground, allowing the product to flow into wells; the NIOSH team found that nearly half the samples were above the current OSHA exposure limit, creating an “inhalation health hazard.”

Almost 80 percent were above the NIOSH-recommended limit — the number OSHA wants to enact.

Another group of NIOSH researchers reported in June that silicosis deaths, after decreasing for years, are rising again. Silicosis was listed as the underlying or contributing cause of death for 88 people in the U.S. in 2011, down from 164 a decade earlier, but such deaths rose to 103 in 2012 and 111 in 2013.

Those who died during the three-year period included a dozen people younger than 45. Researchers called this “concerning,” saying it suggested that intense exposures, of the sort that sickened Chris Johnson, were occurring. Their data didn’t reflect other illnesses linked to silica, such as lung cancer, chronic obstructive pulmonary disease and kidney disease.

The five-decade plunge in silicosis deaths cited by trade groups reflects a shift from manufacturing to service jobs, NIOSH said in a statement to the Center.

“That does not mean that the risk for developing silica-related diseases … is acceptable in those that still work in dusty trades,” the agency said.

Last summer, encouraged by his tolerable if imperfect state of health, Johnson tried to get back into masonry. The experiment lasted a few weeks.

“I just couldn’t do it anymore,” he said. “And then I did try to do a factory job, and that didn’t work.”

A stepfather to three boys, Johnson lifts weights, runs on a treadmill and busies himself with household projects. Six feet tall and 250 pounds, he betrays no outward sign of infirmity. Having settled his lawsuit against the Rome Housing Authority, he’s in decent financial shape and is determined to exceed his predicted life span of 45 years.

Still, Johnson said, “I’m affected a lot by my lungs now. I’m constantly getting sick.” A cold that would sideline the average person for a day or two immobilizes him for weeks. “It puts me right down to where I have no energy,” he said.

But Johnson is grateful to be alive. He’s already had more time than some workers struck with silicosis.

Scott Allen Whipps — like Johnson, a mason — died at 38 in 2006, four years after being diagnosed with the disease. His final months were agonizing.

Bricklayer Scott Whipps, shown here with his dog Maddy, died of silicosis at 38 in 2006.

Courtesy of Judy Schoon

“He coughed non-stop,” said his mother, Judy Schoon of Fergus Falls, Minnesota. “He coughed up blood. He coughed so much that he’d vomit.”

Schoon and her husband Jim, Whipps’s stepfather, witnessed it all firsthand. They’d taken in Whipps during those last months, and his bedroom was next to theirs.

“The goal was always a lung transplant, but he could never get the infection out of his body, so he couldn’t be considered for one,” Judy Schoon said.

One of his lungs turned gangrenous, and shortly after surgery, his condition deteriorated until his hold on life was “very tenuous,” according to a doctor’s report. Whipps would wake screaming in the hospital for his mother. Doctors tried another surgery to save him, to no avail. He died an hour and a half after medical personnel unhooked him from life support, his family telling him to go where the pain would not follow.

It’s been nine years. Judy Schoon still hasn’t processed her son’s early death. Losing a child, she said, is “unnatural.”